958 F.3d 442
6th Cir.2020Background
- In 1960 Don and Phil Everly co-recorded and copyrighted Cathy’s Clown; both were listed as co-authors and assigned 100% of publishing rights to Acuff-Rose.
- In June 1980 Phil signed a “Release and Assignment” transferring his rights (including royalties and "claim as co-composer") to Don; publishers and licensees thereafter often listed Don as sole author and paid him royalties.
- Despite the 1980 assignment and later publisher records, public statements in 1984 and other evidence continued to reflect Phil’s involvement as co-author.
- Don filed a termination notice in 2011 (effective 2016) seeking to reclaim the 1960 grants; after Phil’s death his heirs filed competing termination notices.
- Don sued in 2017 for a declaratory judgment that he is sole author and that defendants’ claims are time-barred; the district court granted summary judgment for Don, finding an express repudiation (and accrual) by 2011.
- The Sixth Circuit reversed and remanded, holding a genuine dispute of material fact exists about whether Don ‘‘plainly and expressly’’ repudiated Phil’s authorship (so as to trigger the 3‑year copyright limitations period).
Issues
| Issue | Plaintiff's Argument (Don) | Defendant's Argument (Phil's successors) | Held |
|---|---|---|---|
| 1) Did Don expressly repudiate Phil’s authorship so as to start the 3‑year limitations clock? | Don says his demand that Phil "take his name off," the 1980 Release, publisher records, royalties, BMI recognition, and the 2011 termination show clear repudiation. | Defendants say the 1980 Release was a voluntary transfer of economic/credit rights (not authorship), later records are consistent with that deal, and Don did not plainly repudiate authorship. | Reversed district court: court finds triable factual dispute whether repudiation occurred; summary judgment improper. |
| 2) Does the 1980 Release itself transfer or conclusively establish authorship (and thus trigger accrual)? | Don treats the Release and surrounding conduct as evidence of repudiation. | Defendants note authorship cannot be transferred by contract; the Release may only convey royalties/credit and is ambiguous on authorship. | The court: 1980 Release is ambiguous; it cannot as a matter of law be treated as conclusive repudiation—jury must resolve intent and context. |
| 3) Do later public acts (publisher registrations, licenses, BMI award, Reba McEntire credits, 2011 termination) alone trigger accrual? | Don contends those public acts show Don publicly asserted sole authorship and put Phil on notice. | Defendants contend many of those acts reflect administrative or voluntary allocation of benefits under the 1980 Release and/or lacked notice to Phil; registrations alone may not give constructive notice. | Court: such acts are not dispositive; some (e.g., registrations, termination filing) do not establish constructive notice or repudiation as a matter of law—fact question remains. |
| 4) Should the accrual date for termination claims be the effective termination date? | Don argues repudiation occurred earlier and accrual is not tied to termination effective date. | Defendants raised on reconsideration that termination rights cannot accrue until effective date. | Appellate court declined to consider this argument (forfeited below); thus not decided here. |
Key Cases Cited
- Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) (plain-and-express repudiation starts accrual for co-ownership/authorship claims)
- Zuill v. Shanahan, 80 F.3d 1366 (9th Cir. 1996) (express repudiation analogous to adverse possession; accrual on repudiation)
- Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) (movie credits can constitute public repudiation of authorship)
- Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383 (6th Cir. 2007) (distinguishes continuing infringement accrual from ownership/authorship accrual)
- Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) (repudiation requires adverse conduct; plaintiff’s lack of notice can defeat accrual)
- Wilson v. Dynatone Publ’g Co., 892 F.3d 112 (2d Cir. 2018) (registration/records alone may not repudiate authorship absent notice)
- Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302 (2d Cir. 2013) (distinguishing repudiation of initial-term ownership from repudiation of authorship/renewal rights)
- Petrella v. Metro‑Goldwyn‑Mayer, Inc., 572 U.S. 663 (2014) (statute‑of‑limitations principles for copyright accrual discussed by concurrence)